Citation Nr: 1543390
Decision Date: 10/08/15 Archive Date: 10/13/15
DOCKET NO. 10-13 757A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to an initial compensable rating for bilateral hearing loss.
2. Entitlement to an initial rating higher than 10 percent for a right ankle sprain.
3. Entitlement to an initial rating higher than 10 percent for a left ankle sprain.
4. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine.
5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: South Carolina Office of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
B. Elwood, Counsel
INTRODUCTION
The Veteran served on active duty from December 1981 to September 1992. He received the Army Commendation Medal.
These matters initially came before the Board of Veterans' Appeals (Board) from July 2008, July 2009, and March 2011 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In the July 2008 decision, the RO denied entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine and denied entitlement to a TDIU. In the July 2009 decision, the RO granted service connection for right and left ankle sprains and assigned initial 10 percent disability ratings. The 10 percent rating for the right ankle sprain was effective from January 10, 2008 and the 10 percent rating for the left ankle sprain was effective from May 23, 2008. In the March 2011 decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective from January 14, 2011.
In January 2010, the RO assigned an increased (20 percent) rating for degenerative joint disease of the lumbar spine, effective from January 10, 2008.
The Veteran testified before the undersigned at an April 2012 hearing at the RO (Travel Board hearing). A transcript of the hearing is associated with the file.
In December 2012, the Board granted an effective date of January 10, 2008 for the grant of service connection for a left ankle sprain, remanded the issues of entitlement to higher initial ratings for right and left ankle sprains, entitlement to an increased rating for degenerative joint disease of the lumbar spine, and entitlement to a TDIU for further development, and remanded the issue of entitlement to a higher initial rating for bilateral hearing loss for issuance of a statement of the case.
The issues of entitlement to higher initial ratings for right and left ankle sprains, entitlement to an increased rating for degenerative joint disease of the lumbar spine, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran has had at worst level III hearing loss in the right ear and level II hearing loss in the left ear.
CONCLUSION OF LAW
The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).
The appeal for a higher initial rating for bilateral hearing loss arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).
The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records. The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any relevant post-service private medical treatment for hearing loss. In addition, the Veteran was afforded VA examinations to assess the severity of his hearing loss.
A VA audiology examiner is required to fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). In Martinak, the Court held that this duty was fulfilled where the examiner recorded the Veteran's complaints that hearing loss and tinnitus interfered with sleep. Id.
The examiners who conducted VA audiologic examinations in February 2011 and September 2013 noted that the Veteran's hearing problems included hearing loss and tinnitus. During the examinations, the Veteran reported that as a result of his hearing loss he had to turn up the television and was unable to hear his wife talking if she was in another room. Hence the functional effects of the Veteran's hearing disability were considered.
The February 2011 and September 2013 VA examinations were otherwise adequate for rating purposes, as they included pure tone audiometry and speech discrimination tests in accordance with 38 C.F.R. § 4.85. The examination reports also included opinions as to the severity of the Veteran's hearing loss. For instance, the February 2011 examination report indicates that the Veteran had normal hearing to mild hearing loss bilaterally. Also, the examiner who conducted the September 2013 examination noted that there was bilateral sensorineural hearing loss in the frequency range of 500 to 4,000 Hertz.
Analysis
Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155.
Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21.
The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85.
Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id.
There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86.
The February 2011 VA examination report indicates that the Veteran's pure tone thresholds, in decibels, were as follows:
Hertz
1,000
2,000
3,000
4,000
Average
Right ear
25
25
25
40
29
Left ear
25
20
30
25
25
Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.
Using Table VI, the February 2011 VA examination revealed level I hearing in both ears. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent.
The September 2013 VA examination report included among the Veteran's paperless records in the Virtual VA system indicates that the Veteran's pure tone thresholds, in decibels, were as follows:
Hertz
1,000
2,000
3,000
4,000
Average
Right ear
25
30
30
40
31
Left ear
25
20
30
30
26
Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 88 percent in the left ear.
Using Table VI, the September 2013 VA examination revealed level III hearing in the right ear and level II hearing in the left ear. Combining level III hearing for the right ear and level II hearing for the left ear according to Table VII yields a rating of 0 percent.
The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating. He is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's statements do not show that he meets the specific pure tone thresholds and/or speech discrimination percentages required for an initial compensable rating for bilateral hearing loss at any time since the effective date of service connection.
In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran's favor, where applicable. The record does not show that the evidence is so evenly balanced as to warrant an initial compensable rating for bilateral hearing loss; nor does the evidence show that the Veteran's hearing disability more closely approximates the criteria for a higher rating.
Extraschedular
Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008).
If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").
There is no allegation or evidence of exceptional factors in this appeal. The symptom of the Veteran's claimed disability is hearing loss. This symptom is specifically contemplated by the rating criteria as set forth above. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1).
A veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, however, there are no symptoms caused by service-connected disability that have not been attributed to and accounted for by a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed to the combined effect of multiple conditions.
ORDER
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
REMAND
Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2015), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R § 4.59 (2015).
The Veteran was afforded VA examinations in February 2013 to determine the severity of his service-connected back and ankle disabilities. The ranges of back and ankle motions were reported and it was noted that objective evidence of painful motion began at 20 degrees of spinal flexion and 30 degrees of left ankle plantar flexion. However, the Veteran was able to perform spinal flexion to 50 degrees and left ankle plantar flexion to 35 degrees. The Veteran also reported severe flare ups of back pain twice per year which required him to lie in bed for 1 to 2 days and flare ups of ankle pain a few times per year which required rest. The examiners who conducted the February 2013 examinations did not identify at what points in the ranges of back and ankle motions, if any, pain and flare ups caused functional impairment. Thus, clarification is required. See Mitchell, 25 Vet. App. at 43-4 ; 38 C.F.R. §§ 4.40 , 4.45, 4.59.
VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2015); see 38 C.F.R. § 19.9 (2015). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).
Updated VA treatment records should also be secured upon remand.
Also, the claim for a TDIU is inextricably intertwined with the higher initial rating and increased rating issues on appeal. Hence, the Board will defer adjudication of the TDIU issue.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the file all records of the Veteran's treatment contained in the Charleston Vista electronic records system and dated from February 2015 through the present; and all such relevant records from any other sufficiently identified VA facility.
All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.
2. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to assess the current severity of his service-connected back disability. All indicated tests and studies shall be conducted.
All relevant electronic records contained in VBMS and the Virtual VA system, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review.
The ranges of thoracolumbar spinal motions shall be reported in degrees. The examiner shall also specifically answer the following question with respect to all appropriate ranges of thoracolumbar spinal motions:
What is the extent of any additional limitation of thoracolumbar spinal motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups? In this regard, some speculation/conjecture on the examiner's part may be necessary.
The examiner shall report whether there is any ankylosis of the thoracolumbar spine. If ankylosis is present, the examiner shall specify whether it is favorable or unfavorable and the angle at which the spine is held.
The examiner shall also report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during any 12 month period.
The examiner shall also specify the nerves affected by the service-connected back disability and provide an opinion as to the severity of any paralysis, neuritis, or neuralgia involving the lower extremities.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his back disability. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so.
The examiner must provide reasons for any opinion given.
3. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to assess the current severity of his service-connected right and left ankle disabilities. All indicated tests and studies shall be conducted.
All relevant electronic records contained in VBMS and the Virtual VA system, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review.
All appropriate ranges of right and left ankle motions shall be reported in degrees. The examiner shall also specifically answer the following question with respect to all appropriate ranges of ankle motions:
What is the extent of any additional limitation of ankle motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups? In this regard, some speculation/conjecture on the examiner's part may be necessary.
The examiner shall report if there is ankylosis of either ankle and, if so, the angle at which the ankle is held and whether any ankylosis of the subastragalar or tarsal joint is in a poor or good weight bearing position.
The examiner shall also report the presence and severity of any malunion of the os calcis or astragalus and any astragalectomy..
The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his ankle disabilities. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so.
The examiner must provide reasons for any opinion given.
4. The AOJ shall review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete.
5. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs